The Efficient Proximate Cause Doctrine
Prof. Bill Long 2/14/05
On this and the next page I will explore the problem of dual causation in homeowners insurance policies. By dual causation I mean the situation where a loss has occurred that is a result of more than one cause, and one of the causes is a "covered" peril and one is not. Courts and insurance companies have wrestled with this issue for decades, with terminological confusion that you are growing to expect in law as a result. In addition, the language of policies has changed over the years, both in the standard form and individual company policies, so that you have to understand the specific language of the policy you are considering in order to sharpen the issue properly. This mini-essay will talk about various theories of handling the problem of dual causation: the next will apply this information to the Bongen case (p.223) and one other case.
An Approach to the Problem
Over the years there have been three leading approaches to the problem. (1) The most liberal is called the theory of concurrent causation. Coming out of the Partridge case in CA (1973), this theory provides that when either of the two or more causes of an accident was a covered cause, there would be coverage. Partridge was a third-party liability case, where the owner's gun discharged while he was driving a car and the bullet hit his passenger. As so often in law, the facts have a comic dimension to them. Partridge was covered both by a homeowners and auto policy by the same company. He had shaved the trigger of his gun to made it "hair trigger" ready to fire. One day he was riding with his gun on his lap in his car with a friend. A jackrabbit crossed in front of the car. He decided to pursue it with the car, left the paved roadway and took after the little critter. But the jostling of the car caused the gun to go off--injuring the passenger friend. The court held that under the liability section of the homeowners policy, this was an injury caused by the insured away from the premises and overrode the exclusion for a loss occurring during the operation of an automobile. Thus, there was coverage.
The one constant in insurance law is that CA in the 1970s was overruled by CA in the 1980s. (2) The second theory of dual causation came out of the Garvey case from CA, cited in the casenote on p.227. Though the language of "efficient" or "proximate" cause was around for decades before Garvey, the CA Supreme Court overruled Partridge and held that when there were two causes of the loss, there would be coverage only if the covered loss predominated over the uncovered loss. What that has been taken to mean is that coverage is triggered if the covered cause is more than 50% responsible for the loss.
But the language of efficient proximate cause can be highly confusing. Even the two words "efficient" and "proximate" may be under certain circumstances contradictory to each other. For example, when I think of an "efficient" cause, I think of something that "makes something happen," whether or not it is the most recent cause or one further back in the chain of causation. On the other hand, when I think of "proximate" cause, I generally think of the one "nearest" to the loss in time. And, indeed, over the years, this kind of causation has been identified with the "moving" cause, the "predominant" cause or the "immediate" cause. Not very much help, do you think? Thus, if someone uses the language of "efficient proximate cause," you need to be clear on how that person is using the word.
(3) The third theory of dual causation is the most conservative one and was developed, surprise surprise, by the insurance industry. Miffed by court interpretations that make them cover losses even if a covered loss was only a minor contribution to the total loss, they developed language, first apparent in the ISO form in 1980, that appears in the standard form policy in our book. Look closely at the language under Section I-Exclusions on p. 175.
"1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss...."
If you read this carefully you see that it disclaims all coverage when there is dual causation. Note the language. Coverage is excluded "regardless of any other cause or event" that contributes "to the loss." That means that if your loss can fit into any one of the eight or nine exclusions that follows, tough luck. The exclusion that seemingly has the greatest "elasticity" of meaning is the second--Earth Movement.
In order to see how the exclusion works, it might be best to compare the facts of one case that you read (Bongen) and one that has a strong "Northwest interest"--insurance claims in the wake of the Mt. St. Helens eruption in 1980. The next page discusses this.
Copyright © 2004-2007 William R. Long